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Short Form Order NEW YORE SUPREME COURT - QUEENS COUNTS Present: BOHORAELE JAIME R. RIOS Justice X. JANICE SERRONE THE RALPH PATERNO REVOCAB TRUST, THE NEW YORK 128 REALTY CORPORATION, MIN JEAN REALTY, LILO, MARCO NETRA, BROTTER JESUS AUTO 5.0O8 COMPANY, SPEED. MUFTLER AND TIRE SHOP INC., and GONZALEZ MNFFLER AUTO MECHANIC REPAIR CORPL, Petitidnprs, - against THE CITE CE NEW YORK, Respondent_ N. The followina oapers numbered 1 to 14 be,: l on this - Verified Notice of. BDRIE Section. 702(B) Claims by Petraioners for, inter ol8la re -krabursetbent for attorneys' fees and exheises, and motion t7 Respondent the City of New York (the Ciby , to ddsmiss the Petitioners' - Verified Notice of EPS* Sesticr 702(E) Claiffu " or alternatively, to dismiss all claims for feey (ought for work on matters predating or otherwise unrelated. to t - E BORT crocess, and to convert this special proceeding loto a plpnary action or to permit discove r - m Papers Numbered
Notice uf Petlnion -Verified Notice of Clain-41ffidavdts-Ed4itidts..... Notice of Petition-Verified. Notice ot Claim-AffiddvetstEnhibfts.,.. StippLat , ot .. .... . ... ,.................. ....,........ Notice of Motion -Affidavits - Exhibits........,...,....,............. P:nowereng Affidavits -PxtAitnts....._..... ...... ....,............. 4-6 1 3-12 13-14.

IA. PART E__ Inds> Eum:r: 17214/12 ikoticn Tat): January 23,_2013 Seqpnce Num(rs: 1, 2 and

Upon the foregoing papers it is ordpred that the motion Hs determined as follows: This is a. special proceeding brought to oatsin reimbursement for. costs, disbursements and exphnses slipn . ediy incurred Ey Petitioners under ( (.3702(E) of the ErEdnent 0:pain Procedure Law (EDPIT. Petitioners ara the owners. and tenants of e:smerclal properties in a 20-acre area ef Willets Point, Queens. Hillets Point. is a

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predominantly industrial site contained ir. :riangnlar area of approximately 6 1 acres. On Septeffber 24, 2'33 and. Noveffber 13, 2008, respentively, the New York City Planning Mammassion and City Ccunnil apprbmed the Willets Point Development. Plan. (the Plan), a project to redevelop Willets Point for residerb.al, retail, hotel, entertainment, and parking uses, among otaer things, with infiastructure and other imptbvements to supaopt the redevelopment, The Citm intended to iffplement the. Plan an bnases, and proposed to acquire Petitioners' properties and redeveltp the 20-acre area io which they are located to implement Phaae I, On. February 11, 2011, the City issued notice of a public hearing under Article 2 of the EMPIT to consider a public taking of . Detitignars" property. On drarch 2, 2011, the public hearing Was helo. )n or about May. 2, 2011, the City issued its determination and fi rdings that it was in the public interest to acqmire the riunts to Paaitioners' propetty and authorized its acquisition. OIS June 2, 2011, the Petitioners filed a Petition with the Appellate Divfsion, Second. Department, bursuE.di to FLIPL 207(A), seeking to annul and set aside the City'a Dptermination and Findings. Briefs were filed and thp matter wa, malendared for oral atgument. On. May 2, 201 2, prior to the date scheduled for the argument, the parties stipulated that: 8 [I]a (Disideratin for the city's agreement not to proceed under . :ien Determination and. Findings, adopted by the City . on. May 2, 201A oz to acquire any ptoperties by eminent domain under sahmm letitioners hereby withdTaw this proceeding. This Stipulation is vachout prejudice to the Petitioners' right to seek any relief undue:: the EffHnent Domain Procedure Law. This Stipulatioo is also withmt preaudice to the City's right to issue a new . Determination and Findings upon aompliance with Article 2 of the Mitinent Domair Procedure Law." The Petitioners subsequently commenced thi , special proceeding seeking an order and judgment directing thb City to reimturse PetiMthaners for the actual costs, disbursemends and expenses which Petitioned's allege tPhay irffnarread as a resoit of the City's abandoned acquisitioo procednre under MDPL "s 7.00 2(8.) and New York City Administrative Code, Title 5, Chapter 3, Mibchapter 1, Section 5-313w The City moves, inter alia, to dismiss this ,opecial proceeding, contending thatf (a)the Willets Point Pr:ject has not been abandoned, and (b) MDPI, 702(B) doeo authorize payments when the, brocedute to acquire property is abandon:8 prior to an EDPL, Article 4 acquisition proceeding. In opposition, Petitioners contend thdc Ae condemnation at issue has been abandoned and payments are aaPsdrized under EDPL

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7)T702(B) for fees and expenses inburren because of the acquisition procedure. EDPN 702(B) prnmtdes as follows"In i he event that the prbcedure to acquire such property is abandorhg by the condemmor, or a court of competent jurisdiction determinEs that nhe condemnor was not legally authorized to acquire the proper ty, or a portion of sucb property, tho condemn= shall be oblige:12 d to reirCourse the condemmee, an ambunt, separately computed an) stated, for actual and necessary costs, distmrsements and. :c: penses y including: reasonable attorney, appraisal and enmineerx 2 fees, and other damages actually inburred by such condemne because of the acquisition procedures. With respect to the City's first contentM n that it. has not. abandoned the Millets Point Project, E32I, 140 provides a set cf dofimiMions of terms used fn the statute. The 3 ::rms "property" and "project" each has its own definition, ""Deab prppertm' ineludes all land and improvements," tETTPL 103 (E "'Public projebt" means any- prbgram cr: opoject for whicb acgpnsb .on of property may be requixed for: a public use, benefit or purbc se" EDPI, 103(G)]. Thus, by the plain language of the statute, t:n abandonment which may serms: to impose liability on the condemno: "or the condemmee's costs, disbursements and. expbnmes is the apandonment of the procedppe to acquire property in eminent dor lin rather than the abandonment of the underlying Project in furt)arance of whibh the procedure to acquire property was institutedThe City next. argues that EPPL :71 7 02 (E) toes not authorHne payments to reimburse condefmees when the frecedure to acquire property is abandoned prior to an. FLED., Zrticle 4 vesting prbeeedingd Generally, a two-step process is requpfd under: the EDPI, before a conMemnor acquires property in: emimem, domain (Matter of Cityy of New Theft [Grand Lafayette Props . . L)C1, 6 N.Y,3d 540 220061), Tn the first step the condeilltir firs ~ makes a determination to condemn) the property aftem :necking the hearing and findings procedurea set. forth in of ELEJ mrtPfle 2. In the sebonM step, the condemner mpmt seek the tramMer of title to the bxopedty by commencing a judicial proceeding Eiown as a "vesting proceeding" pursuant to EDEtt article 4 (id_ = 543). Here, only the first of the two steps has beeo undertake) by the City. 'A person or corporation, whose property ds sought to be taken under condemnation proceedings, is entitled J .7) he headd at every: step iu the process, and in justice shodid he )nmpensated not only for the land or property taken, but. should be indemmified against all cbsts and expenses reasonaMJy incupped eit:nr in resisting nhe

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appropriation or in the prx)ceedjongs fr ascertaining the compensation to be made" (Stooklyn v Long fstpoi Water-Supply.00 148 N.Y. 107, 109 (18951), The court ac:v:ed that an extra allowance should adb been made to the owneb for defending the proceedings tc acqgire its propEggri, but held :kat the lower court had no powdr to make such allowbncb in the atzEnbe ahoy statute allowing it (ad, at 109) EDPL 502(B) was subsItquently enacted, a[ardind but limiting reiraburseinents to circumustanes where the coadamtor has "abandoned" efforts vo aftxtuire the ptoberty, or where the court determines that the condemhor was not 'legally authorted to acquire the property," 1- 17, is nog ettled that EORT2 702(E) pgthrigebs for reimbursement to the cembemnbe what successfully resists. a. "chiposeg acquisitionT at the first step of the eminent donuein ppoDoe ,as where the court detteatines that the condemnor was rot legally t rt.:h./prized to pursue the proposed acquisition (Hargett v, Town ot . T: 5:nderoga -2, 13 N.Y,3d 325 [2009j). 'Plainly fees and costs incuned by a. condebmbe pursuant to EDP" 203 and. 204 are incurred 'because of the acgfumsbtion procedute'" (iM, at 330). The question remahnb whether ECTI2 (1,7:2 (B) provides for relmkg3u:soment to thb condemnee in circumlstancbm ahere the condemn= has "abandoned" the acquisition procbdute at 4: first step of the eminent dombbn procbbs. Generbllyw an award of attorney's fees I; appropriate only whe a controversy has reached its ultimate o.fcbme (see Elkin,s v Cineta Realty, Inc., 61 AMDo2d 828 [2d Dirt 19381; Engel v Wolfsohn, 38 Misc. 3d 17 [App. Temm, 23. Dept :0121). Hbrb, the 3 ccbtrogersya over the Citx"s determihbti:o to acquire the: Petitioners' property has reachbd its "ulttate outcome." The Cty's agreement not to proceed unddr it[ determination erg fihdings to acqhire Petitioners' property bv empnent damain is the equivalent of a successful ohallehge to the craposed taking (see e.gd Matter of Village of Copehhagem v. Teri:Jinn, 26 Misc. 3d 1228 HAJ [Sup Ct, Lewis County 2010l). Furtherrh(e, upon rescinding its determination and findings, the City is no longer authorized to acquire the gropertv in. eminent domain. Chm.s.re is no apparent reason for allowing reimbursement to the cor[lomgee at the first step where the court determines that the conde[bor was not legally authbdited to pgrsub the proposed acquisition. og eminent dpmain and rejects the condemnor's determination and findOngs while batring the same relief to condemgees after thb. cormiemtz: stipulates not to Pursue the proposed acquisition in. eminent damaif and agrees not to proceed. on its determdnation. and findings, Moba)ver, the fact that the Petitioners stipulated to withdtaw the F05" 207 proceeding

-4-

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does not inure to the benefit o.f the City, hEmpeciat ,y given the Tguag of he stipulation wherein states "This Stipul b:.hout prejudice to. the Petition& riot* to seek any relief unbor tt.e. Eminent Domain. Procedure hew, " i(ssmuch as the only relief remaining for Petitioners to seek is Mite reimbursement of their fees and expenses (see e.q, Matter of DU lage of Copenhagen 92, 26 ?Lisp_ 31 1228(71, sacra). Accordingly, the branch of the motion br (he City to dismiss the. Petitioners' 'Verified. Notioe of EPPL Sec - on 702(2) Claigh is denied. Alternaitvely, th.e City . seeks, to dismiss all claims for fees sought for wor* on matters pr atinb or otherwise unrelateb to the EERIE fbcess, and contenbb t. t Petitioners have not met their burden in substantiating the i fee claims. In ie cippositiob, Petitioners contond that they hay6. fileged oogni.zabl causes of action for fe es and. expenses. e purpose of the EDPL to pr - de the exclusive procedure len property shall he acqui reit gy thb exercise of eminent in New York state 20 81 fl(3. . As previously iscussed, the 'acquisition procedure undef EU I 702(B) inludes DRELL article 2 procedures which are the first Etep of the eminent domain. process and, subject to judicial review sbe, Raroett v. Town of Ticonderogfi, 13 N.Y.3d 325, s_flbraL, EDF', (iticle 2 sets forth. the condemnatioo prbcedures includin the pub] I;hing of notice and the conduct of public hearings (see EEPL 511 1, 202, 203), the rendering of the determination and findings a - y the publishing of notice thereof (see EDPIE Sq 8 204, 207 PW1), anf if.>. right of judicial review (see Et= 207). Thbs, the Pet bibners may seek reimbursement for the actual and necessary co ts incur -red because of the condembation procedure that began iiii J. the notice of a ablic hearing (see, Harq_ett v. Town of Ticonceyobb 3) Misc3d Ct, Essex Coun y 2016j; Matter nf of Copenhagen in uI2aialn, 26 Misc, 3d 1228(2), :supra).
-,,

On a mbtion to dismiss, the court's r :1 als to deterr nb cOo' ncr the claim. states a. cause of action. 'Ehe Lotion must be denied if. from the olebRiings four cortneis 'facynal allegations are discerned which. taken. together manifest ahy cause of action cognisable at :haw' (511 W. 232nb Owners Corp. v Jennifer Realty 98 N.Y.2d 144 12002)), To carry out this nusk, the court must fitbrally construe the pleabh_ngs and. accept Js true the facts ef ttwiref.n anb any submissionb in oppositohn to the dismissal on and accord the non-moving, paity th: benefit of every le favorable inference Mtd.L. Het the pleadings Eiently state a. obwase of action. Prfoi of the actual and necessary costs, di.sbursements and expenses, ar '. the reasonablenbss

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of the fees. and expenses thcluded therein, iz keferred to another proceeding (see Gamache v. Steinheus, 7 A.D.G3d i25 12d Dept 20041; Becker v . Empire ot Am. Fed. Sav. Bank, 17' kdr.1.2d 958 [4' Dept 4991]). The City also seeks the conversion of Ira special proceeding into a plenary action, oz permission to c:oduct discovery to ascpmtain exactly what fees anb expenses thh Petitionere may be entsbtled to. In opposition, Petitioners atue that they have brought a special prceeding under . the Eminent Dimpin Procedmre Law as it is the "exthusive procedure" frit cohdeemmdLon related matters in the State of. New York. Petitioners further i:ntend that. as this ia a spetdel proceeding, discovery . shomid be C .3lied oo thp grmutds ghat the City has failed. to show that it is matnrial or necessary. As pawmviousiy noted, the EDE" is crafthc in a manner that devides the eminent domaiu process into two sEjarate steps. EDPL attiode 2 sets forth the conbemnation procedushs). FIDEL articles 4 through 6 define the proceedings that. mbst .er he cometenceb to vest the condemnor with. title to the cmdideenemL property. However, the EDPL contains hp provision which spendLa:ally authorizes a condemnee to commencs a special proceedint: ftr the recovery of instddental expenses in either sten of the prourss. Since the EDEL does not snecifica:Gy authortze the. commenoement of. a special pmoceeddhb for the re 4:verv of incidental expbnses, the instant proceeding must be prosecited in the form of . an action sep CELL 103[h]). When a .iudicHal prceedihe is instituted in thu wrong fornb the court nust convert such proceeding into the proper form as well as mace whptever order is necessary for the proper proeecution (see Glib. .03[191: First Nat'l City Bank v New York Finance. Administtationd :( 0Y2d 87 [1975i). Accordingly, that branch of the wtion e).. ' he City to dismiss thp DOLE 702(B) claim is denied, howevpr the :ranch of thp motHon which seekb to convert the inbtant proceeding :41o. a plenery abtion is granted. ORDERED, the "Verified. Notice of EDEL Section. 702(E) Claim is deemed a summons and. the petition is. :beamed a conplaint.

Dateds April 25, 2613 Index No.: 172 1 4/12